Argument preview: Race’s role on campus, in society

Posted Sat, October 12th, 2013 12:06 am by Lyle Denniston

At 1 p.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the constitutionality of a state voter-approved measure to ban all use of race as a factor in admissions to public colleges. Arguing for the state of Michigan in Schuette v. Coalition to Defend Affirmative Action(docket 12-682) will be the state’s solicitor general, John J. Bursch of Lansing; he will have thirty minutes. On the other side, with fifteen minutes each, will be Mark D. Rosenbaum of the ACLU Foundation of Southern California in Los Angeles, representing a group of University of Michigan faculty members and students, and George B. Washington of the Detroit law firm of Scheff, Washington & Driver, representing a coalition of civil rights groups. The case will be heard by an eight-member Court; Justice Elena Kagan is not taking part.

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Sixteen weeks after the Supreme Court gave public colleges and universities a chance to continue using race as a factor in choosing their entering classes. but only within tight new limits, the Court moves on to decide whether that practice can be banned altogether by a state. The closeness in timing of the June decision in Fisher v. University of Texasand the Tuesday afternoon hearing is a mere coincidence, but it illustrates that the current Supreme Court has a keen fascination with, and a rising skepticism about, issues of race.

This controversy, though, has been growing in intensity for at least seventeen years, since California voters went to the polls and approved “Proposition 209” — a state constitutional amendment banning state government agencies from considering race, sex, or ethnic background in making decisions about education, government jobs, or government contracts. Proposition 209 has survived two rounds of constitutional challenges each in the California Supreme Court and in the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court passed up its only opportunity to examine the measure in 1997.

Now, however, there is a direct split among lower courts on the constitutionality of banning affirmative action, at least in college admissions, and the Supreme Court agreed in March to step in to resolve that dispute. At issue in Schuette v. Coalition to Defend Affirmative Action is the constitutionality of Michigan’s “Proposal 2” — modeled on California’s ban and approved by Michigan voters in November 2006 by a margin of fifty-eight to forty-two percent.

The affirmative action issue, so far as it involves college admissions, always has stirred strong emotions, on both sides, and reactions come quickly after each new development. Often, it seems, the actors in the drama have intertwined roles. The new case before the Supreme Court is a fresh demonstration of that.

After the Supreme Court’s 2003 decision in Grutter v. Bollinger, upholding the limited use of race in selecting entrants to the University of Michigan Law School, a campaign began in that state to imitate California’s “Proposition 209” to assure that the Grutter decision would have no further effect on the campuses of the public colleges and universities there.

One of the leaders of that effort was Ward Connerly, a former college regent in California who had spearheaded the successful “Proposition 209” campaign in his home state He was joined in Michigan by Jennifer Gratz, a young white woman who had been the lead figure in another 2003 Supreme Court decision, Gratz v. Bollinger. Although the Justices in the Grutter decision had upheld affirmative action for admissions at Michigan’s law school, in Gratz’s case they struck down an admissions plan for the undergraduate program at Michigan that, the Court said, relied too much on race.

“Proposal 2” is now before the Supreme Court only as it applies to college or university admissions, and primarily as it applies to the race factor; its text, though, imposed a flat ban on “preferential treatment” based on race, sex, color, ethnicity, or national origin in public employment and public contracting, as well as in the operation of public colleges or school districts.

The day after voters approved the measure, a group of individuals and civil rights organization banded together to sue, under a name that has often been shortened to “By Any Means Necessary,” or “BAMN.” The group’s full name is the Coalition to Defend
Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary. Their challenge was limited to “Proposal 2” only as it applied to public education. A separate lawsuit — also focused on public education — was filed a bit later by University of Michigan faculty members and current students at that university, along with some individuals who said they might apply for admission to one of the public colleges (these challengers have come to be known as the Chase Cantrell group).

The lawsuits were combined in federal court, and they have had a complicated history. The key points along the way were that a federal judge in Detroit upheld the ban, a three-judge panel of the Sixth Circuit Court found it unconstitutional, and then the en banc Sixth Circuit struck it down, by a vote of eight to seven last November 15.

The en banc decision (found here) is not directly a ruling about whether the Constitution does or does not tolerate race-conscious admissions to public colleges. The majority said the case did not require it to say anything further on that score, leaving the constitutional status of the practice where the Supreme Court had placed it in 2003. (The Supreme Court’s decision in the Fisher case from Texas somewhat revising that status came after the Sixth Circuit had ruled.)

What was at stake, the Sixth Circuit majority said, was “the constitutionality of a state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies.” In short, the majority said, this was a case about the political process, and about whether racial minorities would be denied the power to try to persuade college officials to adopt programs that would benefit those minorities — programs that, in taking race into account, were themselves valid under Supreme Court precedents.

The majority concluded that “Proposal 2” made it harder for minorities to get state government even to consider adopting race-conscious programs, thus making the political process itself unequal. The majority was led to that conclusion by two Supreme Court rulings based upon the “political process” rationale. One was the 1969 decision in Hunter v. Erickson, nullifying a voter-approved change in the city charter of Akron, Ohio, making it more difficult for the city to adopt a housing policy benefiting minorities. The other was the 1982 decision in Washington v. Seattle School District No. 1, overturning a voter-approved statewide ban on the use of busing to achieve racially integrated public schools.

Those two rulings, the Sixth Circuit majority found, laid down a rule that a law which has a racial focus, targeting a policy favorable to minorities, and that creates a special burden for minorities to get such a policy adopted, violated the Fourteenth Amendment’s guarantee of equal protection of the law.

There were five dissenting opinions, representing the views of seven judges. Among the arguments the dissenters made in support of the constitutionality of “Proposal 2” was that it was a “laudable” effort to enforce the non-discrimination principles of the Fourteenth Amendment. They also contended that the Sixth Circuit majority had put discriminatory racial preferences beyond the political process, when there is no constitutional guarantee of a right to have race used to determine public policy. The dissenters added arguments that the majority had applied the two Supreme Court precedents far beyond their limited scope.

The state of Michigan, through its state attorney general, Bill Schuette (pronounced SHOO-tee), filed its case in the Supreme Court last November. Without waiting for the ruling that it was to issue in the Fisher case, the Court granted review on March 25, noting that Justice Elena Kagan would not take part — presumably because of some role she had had in relation to the Michigan litigation while she was serving as U.S. solicitor general before joining the Court.

Petition for certiorari

The state raised a single issue: whether it violated equal protection guarantees for a state to amend its constitution “to prohibit race- and sex-based discrimination or preferential treatment” in admissions policies for public universities.

Michigan’s opening argument was that the Sixth Circuit had now put itself in conflict with the Ninth Circuit decision upholding California’s “Proposition 209.” The state contended: “It is intolerable that California voters can pass laws guaranteeing the protection of equal treatment in higher education but Michigan voters cannot.”

In addition, the state contended that the Sixth Circuit’s ruling “turns the democratic process on its head” by making it impossible for the state’s citizens to check the policies of university administrators. Also, noting that the Supreme Court in the Grutter decision had said that race preferences would have to come to an end at some point and that government officials should look for non-race alternatives, the petition said the Sixth Circuit’s ruling conflicts with those principles.

Finally, the state challenged the appeals court’s reliance upon the Hunter and Seattle precedents, urging the Court to find that those rulings did not apply but, if they did, they should be overruled on the premise that they allow for discrimination based on race.

The opponents of “Proposal 2” took conflicting positions on whether the Court should hear the Michigan appeal. The BAMN coalition conceded the importance of the issue and the existence of a split between the Sixth and Ninth Circuits, and said that a final ruling by the Supreme Court was necessary to nullify similar bans in four other states — Arizona, Nebraska, Oklahoma, and Washington. However, the “Cantrell” group of Michigan teachers and students opposed review, arguing that the Sixth Circuit was right, that the split with the Ninth Circuit is not a significant one, that the Supreme Court’s Grutter decision actually buttresses the case against “Proposal 2,” and that the Court should not reexamine or overrule the Hunter and Seattle decisions.

The two briefs tried energetically to argue that consideration of affirmative-action policies was not a form of race discrimination, and accused the backers of “Proposal 2” of using loaded words and phrases — like “preferences” — to try to show that the measure was a benign shield against blatant race bias.

Michigan’s petition had the support of four other states — Alabama, Arizona, Georgia, and Oklahoma — and of state legislators, and conservative advocacy groups and legal organizations that argued, among other things, that the kind of voter-approved measure adopted in Michigan and California is gaining in favor in other states, too. A group of former attorneys in the U.S. Department of Justice also filed a brief, urging the Court explicitly to overrule the Hunter and Seattle decisions, arguing that because times have changed since those rulings were issued the “political process equal protection theory” should be cast aside.

Briefs on the merits

The state of Michigan’s brief on the merits continued to claim the high road of equality, suggesting that if “Proposal 2” is struck down, “any law to require equal treatment” will be in constitutional jeopardy. The ballot measure was passed to wipe out discrimination and preferences, the brief said, so its entire mandate is to require legal treatment of those seeking admission to public colleges in the state.

“It is curious,” the brief said, “to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex.”

Noting the ongoing, heated controversy over affirmative action, the state contended that the Supreme Court has made clear that race-conscious actions of government — including affirmative action in college admissions — start out with a presumption that they are invalid, and it actually has allowed them only in “some narrow situations.” It is against that backdrop, Michigan’s brief said, that the people of the state chose to ban affirmative action in higher education, and there is nothing in the Constitution that forbids that choice.

The state brief made a strong verbal assault on the political process doctrine upon which the Sixth Circuit had relied. But, taking those decisions as it said the Court had meant them, the state argued that they should be confined to “laws that impede protection against unequal treatment,” not laws like “Proposal 2” that target preferential treatment.

If the political process doctrine is to be applied at all, the state asserted, it should apply only to government actions in which there is a specific official intent to discriminate based on race. Since there are many reasons one might give to abolish a race-conscious college admissions program, “it is not possible to say” that “Proposal 2” discriminates as its specific purpose, the state argued.

Moreover, because of its equality aspiration, “Proposal 2” should not be subjected to a more rigorous constitutional test of the kind that is used for policies that definitely do discriminate on the basis of race, according to Michigan. So, the Court should apply only the lowest level of scrutiny — considering whether the law has a “rational basis,” the brief argued. And given the many reasons that would support putting an end to affirmative action, the ballot measure clearly passes that test, Michigan said.

The BAMN coalition’s merits brief opened with a lengthy historical essay, suggesting that America is on its way toward becoming a nation in which minorities have a majority of the population, reflecting “the greatest demographic change that the nation has ever faced.” And yet, the brief argued, measures like “Proposal 2” will be put forth by whites who are losing their majority to inhibit the political power of emergent minorities. Such measures, it contended, threaten to bring back the convulsions that racked the country over its history of racial division and animosity.

The decision that emerges from the Court in this case, the coalition brief said, “will tell the people of America what the Court’s relationship is to America’s transformation into a majority-minority nation.” It will be a message, the brief suggested, about whether the Court will allow Michigan to become “the model for how to create a new, constitutionally-ratified Jim Crow.”

The coalition document noted that, when “Proposal 2” passed at the polls, ninety percent of black voters cast ballots against it, while two-thirds of white voters supported it. With the state having a population that is eighty-five percent white, according to the brief, there is at present a broad gap in political power, so minorities may not soon be able to muster the strength at the polls to put over a constitutional amendment to repeal “Proposal 2” and thus regain the right to ask for affirmative action policies.

The coalition contended that the backers of the ballot measure were seeking to create a regime in which affirmative action plans would have to survive two constitutional tests: one, on whether the plan satisfies the Supreme Court’s decisions on permissible race-conscious remedies, and then a second one on whether minorities have any right to propose the adoption of such remedies.

That brief also sought to show that the practical effect of “Proposal 2” has been to resegregate the races in the state’s public colleges and universities.

The merits brief for the collection of University of Michigan teachers and students (the “Cantrell plaintiffs”) is a much more straightforward legal document than the BAMN coalition’s. It makes an energetic argument for applying the rigorous constitutional test of “strict scrutiny” to a measure like “Proposal 2.” The premise of that argument is a claim that this ballot measure actually seeks to dictate a political process that functions along racial lines, putting only those in a racial minority at a disadvantage in the pursuit of favorable public policies.

This document sought to assure the Court that a decision along the lines of the Sixth Circuit’s would not mean that courts could make unrestricted use of the “political process” theory to invalidate state and local laws. That theory is only available, the brief contended, when a state is seeking to intervene to stop the adoption of a policy that is itself constitutionally permissible. The doctrine has no place, this brief said, in trying to stop a state from passing laws that prohibit unconstitutional uses of race.

The defenders of “Proposal 2,” the teacher/student brief asserted, want the Court to endorse such measures primarily because the state and the other supporters of the measure simply have been unable to accept that the Supreme Court’s precedents do allow some discrete use of race in public policy, including college admissions.

There also are merits briefs from the leaders of the three major public universities in the state — the University of Michigan, Michigan State, and Wayne State University — and those documents make fervent pleas for the ability of public higher-education institutions to be able to pursue racial diversity in their student bodies for its educational value.

There is one brief on the respondents’ side of the case that supported the state of Michigan on the merits. That was filed by Eric Russell, who entered the case as an intervenor when he was a new student at the law school at Wayne State, but also had sought admission to the law school at Michigan. He joined in the case to make his own plea for equality in the admissions process, and thus he joined in defending “Proposal 2.” Russell’s merits brief included a direct plea for overruling the Hunter and Seattle precedents, arguing that the political process doctrine is too easily abused to restrict government power to reorder the decision-making process.

There are no surprises among the list of amici on either side.

Michigan picked up the support of an additional state — West Virginia. The other briefs on that side are predominantly from conservative advocacy organizations and individuals or groups that are notably skeptical — at a minimum — about the wisdom of affirmative action in general.

With their first chance to gain amici support, at the merits stage, the challengers to “Proposal 2” gathered about half as many more, numerically, as were in support of Michigan. Six states and Washington, D.C., have come in on that side of the case, and there are briefs from other universities, and from educational associations and civil rights groups, as well as academic commentators.

Analysis

From the very outset of this case, it has lent itself to soaring rhetorical flights: on the Michigan side, “Proposal 2” is an idealistic gesture to restore true equality to U.S. higher education; on the challengers’ side, it is “Jim Crow” all over again with the whites claiming the political process as their exclusive province; on the Michigan side, it is cultural liberation from undeserved privilege; on the challengers’ side, it is racial oppression and re-segregation.

Because this case, at its core, is a deeply complex mix of history, constitutional theory, social arrangement, and political operation, it would seem to require some clarity of analysis, some detachment from slogans and name-calling.

Thinking through whether this is just affirmative action upside-down — not about what the Constitution allows in the use of race in public policy, but about what is permissible in seeking the eradication of race-consciousness — is hard enough on its own. But when the discussion veers back into mutual denunciation and moral judgment, it is hard to ponder this case in the calm of constitutional discourse.

The case has the potential, of course, to wipe off the books of Supreme Court precedent a pair of rulings that were part of the developing civil rights revolution, and that presumably had played some role in expanding minority opportunity. If the Court undercuts those precedents, will that mean that public policy that can be attributed to racial animus (provable or not) is newly permissible? Will political activity go back to being open primarily to the manipulation of elites or at least transient majorities?

On the other hand, the case also has the potential to bring some new understanding of just how divisive race is, even today, and perhaps lead the way for some closer examination of possible common ground, maybe somewhere near the middle. Each side along the racial divide seems still to have difficulty grasping what it is that so agitates the other side. Could a constitutional declaration by the Supreme Court open a new dialogue along that cultural front?

The simpler this case is made to seem, the more it obscures what probably is really at stake. If it is just about a new race war, and much of the writing in this case comes close to saying that, whatever the Court ultimately decides would simply be aligned with one combatant or the other. But if the Court takes into account all of its subtleties and nuances, and still can say something of clarity, it might be an instrument of accommodation.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.